MARY BETH KELLY, J.
In this case, we must determine whether defendant's convictions of accosting a minor for immoral purposes or encouraging a minor to commit an immoral act, MCL 750.145a, and using a computer or the Internet to accomplish the same, MCL 750.145d, should be overturned on the basis of erroneous jury instructions. The instructions given at trial did not properly apprise the jury of the actus reus of the accosting a minor statute and were therefore plainly erroneous. However, we conclude that, regardless of whether defendant waived review of the jury instructions, the instructions did not result in outcome-determinative error, defendant was not denied the effective assistance of counsel, and sufficient evidence was produced at trial to support the jury's verdict. We therefore reverse the judgment of the Court of Appeals and reinstate the jury convictions.
I. FACTS AND PROCEDURAL HISTORY
Defendant, then aged 51, logged into a Yahoo! chat room under the screen name "mr_ltr_nmidmi_007" and engaged in a conversation with a person he believed to be a 15-year-old girl identifying herself as "keyanagurl." Before he asked keyanagurl her age, defendant stated that he was "very horny" and asked keyanagurl if she wanted to role-play. Defendant went on to say that he enjoyed different types of sexual activities, including "role, phone, cyber"
Upon learning that keyanagurl was supposedly a 15-year-old girl, defendant continued the chat. Defendant informed keyanagurl that he had a "great pool in the woods" with "no neighbors in sight," and asked if she had a boyfriend. Defendant told keyanagurl he was divorced, but explained that he would rather "be with someone, enjoy sharing and cuddling[.]" Defendant requested that keyanagurl send him photographs of herself, and keyanagurl agreed and sent a photograph of a 15-year-old girl. The conversation continued as follows:
Defendant asked keyanagurl what she was wearing, and when she responded "nuthin hot," defendant exclaimed, "oh baby sweet." Defendant indicated that he was only wearing boxer shorts and repeatedly asked if the two could speak on the telephone or Internet voice chat. First, defendant asked keyanagurl, "you hav mic?" When keyanagurl responded that her microphone was broken, he asked if she had a cellular phone or whether she could enable his microphone on her computer. When that did not work, defendant asked to call her home phone. During these repeated attempts to speak with her, defendant also engaged in the following exchange:
After keyanagurl refused his last attempt to speak with her on the phone, defendant conceded that he was "thinkin with wrong brain[.]" When keyanagurl asked defendant how many "brains" he had, defendant replied that he had two and that one was in his boxers and was "gettin bigger" and "feels great[.]" He stated that when he was in school he was "always horny[.]" The chat concluded as follows:
Over the following six days, keyanagurl chatted two more times with defendant. During the second chat, defendant stated that he was about to vacuum his pool to prepare for a party later that evening. He stated that there would be friends and alcohol at the party and exclaimed, "cant wait for hot weather for skinny dipp[ing]." Defendant also mentioned that he had a hot tub. During the third chat, keyanagurl asked defendant about his pool party. Defendant responded that "it was a blast" with "lots of partying" and explained that
Shortly thereafter, Emrick appeared at defendant's home to execute a search warrant. Defendant denied that he owned a computer, denied that he had home Internet access, and denied that he had a Yahoo! account. However, Emrick observed a computer monitor in the home and confronted defendant with a local newspaper article that featured a story about how defendant used the Internet to collect Frisbees. Several hours after Emrick left the residence, a homeowner in the area saw defendant dump "thin strips of beige plastic" near a dirt road in a rural location. Police officers responded to the call and collected the parts.
At trial, prosecution witness Jasmine DeWeese testified that when she was 22 years old, she began an online relationship with defendant that included consensual cybersex and eventually led to physical sex. After two or three chats, defendant invited DeWeese to his home, and he offered to pay her to clean his house. DeWeese agreed and went to defendant's home on several occasions. She testified that defendant asked her to wear clothing that made her look "cute" and "young" and specifically requested that she wear a "schoolgirl" outfit. DeWeese testified that defendant suggested that she bring her underage sister along to help clean and swim in his pool, where "[s]uits were optional." DeWeese testified that defendant showed her his favorite pornographic websites and other pornography stored on his computer's hard drive. DeWeese testified that the photographs on the hard drive depicted girls that looked "extremely young" and sexually undeveloped. The trial court admitted DeWeese's testimony pursuant to MRE 404(b) to show defendant's intent and to show that defendant acted according to a common plan, scheme, or system.
Defendant did not present any evidence and instead moved for a directed verdict, which the trial court denied. During closing argument, the prosecutor stated that the accosting a minor statute, MCL 750.145a, required a finding that defendant "did accost, solicit, or entice." The prosecutor proceeded to define each of those terms and explained, "So those are the three ways you can do this. You accost, entice or solicit . . . [and] the prosecution has the burden of proving beyond a reasonable doubt all of the elements. That's one of the elements I have to prove." In her rebuttal, the prosecutor stated that "[a]ccosting a minor on the internet for the purposes I've described in the statute, that's illegal." The prosecutor noted that "[t]he law says accost, entice or solicit with a certain intent. . . . It says you accosted, enticed or solicited with the intent to result in an act." She argued that defendant had tried to entice and induce keyanagurl.
Defense counsel responded in closing argument that defendant had not accosted, enticed, solicited, or encouraged keyanagurl to commit any proscribed act, despite participating in the chats. Defense counsel argued that because defendant did not invite keyanagurl to meet him, did not ask her to have sex with him, and did not exchange obscene photographs with her, defendant could not be guilty of accosting a minor under MCL 750.145a. Rather, defense counsel asserted that a conviction under MCL 750.145a must be supported
Following closing arguments, the trial court instructed the jury on the elements of accosting a minor:
Defense counsel stated that he did not have any objection to the instructions. While deliberating, the jury asked the court for the definition of "accost," and the court provided the following dictionary definition: "to approach and speak to, greet first before being greeted, especially in an intrusive way." Defense counsel likewise did not object to that definition.
Thereafter, the jury convicted defendant of accosting a minor, MCL 750.145a, and of using a computer or the Internet to do the same, MCL 750.145d(1)(a). Defendant moved for a judgment of acquittal or for a new trial, arguing that insufficient evidence supported a finding of the actus reus element of MCL 750.145a. Defendant also moved for a Ginther
Defendant appealed as of right, and the Court of Appeals reversed his convictions and remanded the case for a new trial.
A. ELEMENTS OF MCL 750.145a
The prosecution argues that the Court of Appeals erred by concluding that the trial court committed instructional error warranting reversal. Before determining whether the jury instructions were erroneous, we must first construe the meaning and elements of accosting a minor, MCL 750.145a. We review de novo questions of statutory interpretation.
MCL 750.145a, provides:
Reduced to its essential language, this provision states:
Because the Legislature used the disjunctive term "or," it is clear that there are two ways to commit the crime of accosting a minor.
Although the latter, "encourages" prong lacks an explicit element of intent, there is no clear indication that the Legislature meant to dispense with the mens rea requirement. When interpreting a criminal statute that does not have an explicit mens rea element, we do not construe the Legislature's silence as an intention to eliminate the mens rea requirement.
In comparison, if a defendant has committed acts of accosting, enticing, or soliciting, the statute requires the prosecution to demonstrate a specific intent to induce or force the child to commit proscribed acts; it is not enough for the prosecution to merely establish that the defendant committed acts of accosting, enticing, or soliciting. The Legislature's inclusion of alternative bases for conviction, one that requires proof of specific criminal intent and another that requires proof of a general criminal intent, demonstrated an intention to criminalize a wide range of sexually predatory actions aimed at children.
B. JURY INSTRUCTIONS
Having construed the elements of MCL 750.145a, we now consider whether the trial court's instructions regarding the crime of accosting a minor were erroneous.
A criminal defendant has a constitutional right to have a jury determine his or her guilt from its consideration of every essential element of the charged offense.
As noted, the trial court instructed the jury on the elements of accosting a minor as follows:
Considering this instruction as a whole, we conclude that it misinformed the jury of the elements of the offense. Although the instruction was correct with respect to the encourages prong of the offense, it erroneously omitted the actus reus element of the "accosts, entices, or solicits" prong of the offense. The fact that the trial court properly instructed on the encourages prong of the offense did not negate this instructional error. This is because we do not—and cannot—know whether the jury convicted defendant on the basis of the accosts, entices, or solicits prong of the offense or the encourages prong of the offense. Because the trial court omitted the actus reus portion of the accosts, entices, or solicits prong, the instruction was erroneous and the jury was precluded from making a finding on this element of the offense.
Again, a jury instruction that improperly omits an element of a crime
In this case, before jury selection, the trial court proposed to the prosecutor and defense counsel the jury instructions for accosting a minor ultimately given. After the court read the instructions, the following exchange occurred:
After the close of proofs, the trial court dismissed the jury, and defense counsel expressed his approval of the jury instructions generally. The trial court again read the proposed instruction for accosting a minor, along with several other model jury instructions. The trial court then asked:
After providing the instructions to the jury, the trial court once again asked counsel if there were any objections. Defense counsel for the fourth time stated, "None by the defense, your Honor." Thus, by expressly and repeatedly approving the jury instructions on the record, defendant waived any objection to the erroneous instructions, and there is no error to review.
Defendant, however, argues that defense counsel merely forfeited the error because counsel did not state that he "approved" of the instructions.
We review unpreserved constitutional error for plain error affecting a defendant's substantial rights.
Defendant has established that an instructional error occurred and that the error is plain and obvious on the record. However, defendant cannot establish that this error affected his substantial rights. We have previously held that jury instructions that were somewhat deficient may nonetheless, when viewed as a whole, have sufficed to protect a defendant's rights when the jury would have convicted the defendant on the basis of the evidence regardless of the instructional error.
Here, even if the trial court had properly instructed on the accosts, entices, and solicits prong of the offense, the jury would still have convicted defendant because the Internet chats, in and of themselves, were immoral, grossly indecent, delinquent, and depraved acts that constituted the actus reus under either prong of the offense.
At the outset, defendant invited keyanagurl to engage in role-playing or cybersex. After learning keyanagurl's age, defendant continued to guide the course of the conversation in a manner intended to heighten the sexualized nature of the chats. Defendant asked keyanagurl if she was "horny" and indicated that he was; defendant asked keyanagurl for her photograph and upon receiving it, indicated that he was sexually aroused and referred to physical attributes of his genitalia; and defendant told keyanagurl that he enjoyed fantasizing about young women and performing oral sex. Defendant also told keyanagurl that she was "cute" and had a "yummy" chest.
Moreover, defendant sought to escalate the instant messaging conversation by repeatedly requesting or soliciting keyanagurl to talk over the telephone or using their computers' microphones, interspersing those solicitations with highly sexualized comments, including comments about how horny he was. After keyanagurl rebuffed defendant's attempts to speak with her, this first chat between defendant and keyanagurl concluded with defendant stating that he needed to have cybersex with someone and that he would soon masturbate. In subsequent chats, defendant
Additionally, DeWeese's testimony would have allowed a rational juror to conclude that defendant's acts were intended to engage keyanagurl in sexually delinquent behavior through a common plan or scheme that he had used on DeWeese. DeWeese testified that her online chats with defendant eventually led to cybersex at defendant's direction. She testified that defendant told her to dress so that she looked "young" and explained that defendant had a collection of pornographic photographs of sexually undeveloped girls. Further, a jury could have inferred from the testimony of the homeowner who lived in the area that, after Emrick questioned defendant, defendant destroyed his computer and discarded it in a secluded, rural location. This, coupled with defendant's dishonesty about having home Internet access, would have allowed a jury to infer that defendant evinced a consciousness of guilt.
Taking all this evidence together, it is clear that the evidence of the actus reus under either prong of the offense was overwhelming and uncontroverted. The chats constituted highly sexualized conversations, which were by themselves immoral, grossly indecent, delinquent, or depraved acts. These highly sexualized conversations between defendant (an adult stranger) and a person whom he presumed to be a child, in which the child sent the stranger her photograph, was asked for her phone number, and was continuously objectified in a sexual manner, would have given an actual child a distorted and unhealthy view of human relationships and would have involved her in a distinctly antisocial set of behaviors. As the prosecutor explained at trial, "sex talk over the internet," such as the highly sexualized conversations that undisputedly occurred between defendant and someone whom he believed to be a 15-year-old girl, "in and of itself is a delinquent act for a minor to be engaging in. . . ." We agree with the prosecutor that, according to "common everyday understanding . . . this [kind of sex talk over the Internet] is delinquent behavior. . . ." By engaging in the chats, defendant committed the actus reus of accosting a minor under either prong of the offense. Therefore, by admitting that he participated in the chats with a person he presumed was a 15-year-old girl, defendant cannot establish that the trial court's charge to the jury affected the outcome of the lower court proceedings.
Defendant engaged in highly sexualized online chats with a person whom he believed to be a 15-year-old girl. In doing so, he accosted, enticed, solicited, or encouraged a child to commit an immoral, grossly indecent, delinquent, or depraved act within the meaning of those terms in MCL 750.145a. Although the trial court erred when it failed to instruct on the actus reus of the accosts prong of the offense, reversal is not warranted. Regardless of whether defendant waived review of the instructional error, the error did not affect his substantial rights, defendant was not denied the effective assistance of counsel, and there was sufficient evidence to support his convictions. We therefore reverse the judgment of the Court of Appeals and remand for reinstatement of the judgment of sentence pursuant to the jury convictions.
ROBERT P. YOUNG, JR., STEPHEN J. MARKMAN, DIANE M. HATHAWAY and BRIAN K. ZAHRA, JJ., concur.
MICHAEL F. CAVANAGH, J. (concurring in the result).
I agree with the majority's conclusion that the trial court improperly instructed the jury on the charged offense, MCL 750.145a. Although I do not believe that the evidence against defendant was "overwhelming," I concede that, under the facts of this case, defendant cannot establish that he is entitled to relief under plain-error review. Accordingly, I concur only with the result reached by the majority opinion. I write separately, however, because I question the majority's waiver analysis. I also write to reiterate my belief that this Court should not have extended the plain-error review doctrine to the type of arguably unpreserved constitutional error present in this case.
Federal caselaw suggests that the majority's waiver analysis is overly simplistic. As the majority correctly explains, the canonical definition of "waiver" is the "`intentional relinquishment of a known right.'" People v. Shahideh, 482 Mich. 1156, 1180, 758 N.W.2d 536 (2008) (CAVANAGH, J., dissenting), quoting Bailey v. Jones, 243 Mich. 159, 162, 219 N.W. 629 (1928) (emphasis added). Applying this definition, the United States Court of Appeals for the Third Circuit has concluded that the threshold question in determining whether an issue capable of being waived has indeed been waived is "whether the appellant who failed to object in the trial court to an error that violated his rights was aware of the relinquished or abandoned right." Virgin Islands v. Rosa, 399 F.3d 283, 291 (C.A.3, 2005) (emphasis added). In other words, while "waiver is accomplished by intent," unpreserved, or what has been dubbed "forfeited," error "comes about through neglect." United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (C.A.10, 2009) (quotation marks and citations omitted); see, also, People v. Grant, 445 Mich. 535, 554, 520 N.W.2d 123 (1994) (LEVIN, J., concurring). Accordingly, a rote statement by trial counsel that he has "no objection" to the instructions, or his expression of satisfaction with the instructions as given, may not necessarily be determinative of whether the right was in fact waived. Rosa, 399 F.3d at 287-289, 291, 293. Instead, whether a failure to object will be deemed a waiver depends on
Although some federal courts have concluded otherwise, see, e.g., United States v. Gonzalez, 319 F.3d 291, 298 (C.A.7, 2003), in my view, the aforementioned analysis is persuasive and consistent with the generally recognized notion that waiver of a constitutional right should not be lightly presumed, see Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (explaining that "[t]here is a presumption against the waiver of constitutional rights"); Rosa, 399 F.3d at 294 n. 12 (explaining that a defendant's federal due process rights are violated if a jury instruction omits or materially misdescribes an essential element of an offense). By focusing on the definition of waiver—i.e., the intentional relinquishment of a known right—the federal caselaw discussed ensures that a defendant's right to appellate review of an instructional error is not summarily foreclosed simply because trial counsel mechanically agreed with an erroneous jury instruction when counsel was unaware of the correct rule of law or, if aware of it, did not realize that the instruction misstated the law. Rosa, 399 F.3d at 291.
In light of this caselaw, I would not hastily presume that a waiver occurred in this case simply because defense counsel stated on more than one occasion that he had no objection to the instruction. Indeed, the facts of Rosa counsel against such an analysis. See id. at 287-289, 291, 293.
Nevertheless, I concur with the majority's result because I agree with the majority's conclusion that defendant cannot establish that he is entitled to relief under the plain-error standard of review. As I have noted in the past, however, I continue to disagree with this Court's decision to extend plain-error review to unpreserved constitutional errors and instead would subject such errors to harmless-error analysis. See Grant, 445 Mich. at 554-557, 520 N.W.2d 123 (LEVIN, J.,
MARILYN J. KELLY, J., concurs.